M.I. et al. v. Australia
| Country of applicant: | Afghanistan Iran Iraq Pakistan Sri Lanka , |
| Court name: | UN Human Rights Committee |
| Date of decision: | 23-01-2025 |
| Citation: | CCPR/C/142/D/2749/2016 |
Keywords:
| Keywords |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
Headnote:
The Human Rights Committee ruled that their treatment of asylum seekers detained on Christmas Island and later transferred to Nauru under Australia's offshore processing policy violated the ICCPR, due to arbitrary detention and cruel treatment. Australia was ordered to compensate the victims and reform its migration policies.
Facts:
The case concerns 24 authors from different countries fleeing persecution who attempted to reach Australia by sea. Intercepted by the Australian authorities, they were detained on Christmas Island (mid-2013–early 2014) before being transferred to Nauru under an agreement between Australia and Nauru.
In Nauru, they faced overcrowded, inadequate conditions of detention in tents lacking privacy and climate control, leading to mental and physical health issues. Uncertainty about their future worsened their distress.
The applicants applied for asylum in Nauru, all but one were granted refugee status, yet continued to endure poor living conditions. They argued that they had no effective legal avenues to challenge their transfer or detention, as the Covenant was not implemented domestically.
Their detention involved severe restrictions, including limited communication and support. The conditions were unfit for children and families, violating their rights under the Covenant, while the transfers disregarded their individual circumstances, especially as unaccompanied minors.
Decision & reasoning:
The United Nations Human Rights Committee (the Committee) reviewed the complaints of unaccompanied minors who were detained by Australia on Christmas Island in 2013-2014 and later transferred to Nauru Regional Processing Centre. The applicants argued that their detention was arbitrary, unreasonably prolonged, and lacking legal remedies, violating their human rights under ICCPR.
The minors were detained on Christmas Island for 2 to 12 months before being sent to Nauru and detained there at the Nauru Offshore Regional Processing Centre (RPC). The Committee outlined that detention during immigration control proceedings is not arbitrary per se but that detention must be justified as being reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time.
The Committee recalled its general comment No. 35 which states that children should not be deprived of their liberty except as a measure of last resort and for the shortest appropriate time and noted that the State party did not show that the minor authors could not have been transferred to community detention centres on the mainland which are more tailored to the specific needs of vulnerable people, and therefore concluded that their detention on Christmas Island was arbitrary and contrary to the Covenant.
Regarding an effective domestic remedy, the Committee held that the State Party had not provided relevant legal precedents showing the effectiveness of judicial review applications before the courts in detention situations and had not demonstrated the availability of this remedy or that national courts have authority to make individualised rulings on the justification of the author’s detention and therefore the Covenant has also been violated in this way.
However, regarding the claims as to the non-refoulment obligations, the Committee disagreed with the authors and held that they had not supported their claim of the existence of a real risk of irreparable harm after their transfer to Nauru and the Committee found the transfer legally permissible and in accordance with Nauru’s undertakings in the Memorandum of Understanding.
In relation to the detention conditions in the RPC in Nauru, the Committee found that due to the lack of individualised assessments on whether less restrictive measures are appropriate, the prevalence of unsafe environment including violence, overcrowding and prison like conditions and the absence of opportunity for the authors to appeal decisions on the mandatory immigration detention, the authors were detained arbitrarily in Nauru RPC.
Outcome:
Australia was found responsible for not providing an effective remedy to the authors and obligated to provide adequate compensation to the authors for the violations suffered during the periods of their detention on Christmas Island and in the Regional Processing Centre in Nauru. The Committee also urged Australia to revise its migration policies and offshore processing arrangements to prevent similar violations. Additionally, Australia was required to report back within 180 days on measures taken to implement these recommendations.
Cited National Legislation:
| Cited National Legislation |
| Australia, Migration Act, 1958 |