AUSTRALIAN LAWYERS FOR HUMAN RIGHTS

Important Disclaimer

:: Lodging Communications with the United Nations Human Rights Committee

• First Optional Protocol
• International Covenant on Civil and Political Rights (ICCPR)

For unsuccessful asylum seekers, the claim will be that if the person is deported to the home country he or she will be exposed to the danger of torture or cruel, inhuman or degrading treatment or punishment, in breach of Article 7 of the ICCPR.   The obligation of Australia not to deport a person under such circumstances is absolute, and is not constrained by considerations of national security.

For asylum seekers in detention, a claim of arbitrary detention under Article 9 of the ICCPR should also be included, following the findings in A v Australia.

If there is a claim that the asylum seeker has been mistreated in detention, a claim may also be made under Article 10 of the ICCPR.

Detention of children might also include Article 24.

In order to facilitate the communications process, the UNHRC may, under Rule 86 of its Rules of Procedure, request that Australia refrain from deporting the person pending its final decision on the communication. It is possible to lodge a communication and make a Rule 86 request just prior to the final exhaustion of domestic remedies (see (a) below) if the person will be exposed to deportation immediately upon the final exhaustion of domestic remedies.

The major disadvantages of this procedure are as follows:

(a)    The communication cannot be lodged unless and until the individual has 'exhausted' all domestic remedies, by which is meant that all tribunal and court appeals have been finalised. There is no requirement to exhaust remedies which are futile, so it may be that the person does not have to go as far as the High Court where special leave to appeal is very unlikely.  However an appeal to the Full Federal Court would probably have to take place, even if the person does it unrepresented. Complaints which are unenforceable, such as to HREOC or appeals to the Minister on humanitarian grounds under s 417, are not usually necessary to exhaust domestic remedies.

(b)    Communications to the UNHRC take a long time to resolve; usually 2-3 years.  There is no provision for a bridging visa to be granted in the interim, so the person would have to remain in detention during this period.  There is particular concern at the prolonged detention of children, and it may be possible in a really bad case to get a request under Rule 86 that children be released in the interim.

(c)    Even if the communication is decided in favour of the applicant, it is not binding on Australia and there is no way of enforcing the UNHRC's views.  Australia has, in the past, generally complied with the views of UN committees, but only in a limited way.  Thus, in Elmi v Australia, where the UN Committee Against Torture found that Australia should not return an asylum seeker to Somalia, Australia did not give him a protection visa but began the entire refugee determination process from the beginning, while the applicant remained in detention.

For the above reasons, communications procedure is really only a measure of last resort, where all other attempts to prevent deportation have failed.  On the other hand they are a useful mechanism to prevent deportations where there is considerable certainty that the person faces grave risks upon return.  In addition, they will serve as an important record of Australia’s continued breaches of international human rights.

You can view a sample communication (for an Iraqi family in detention in Australia).

You can download the following sample documents:

• a covering letter to the UNHCR which includes a rule 86 request
• an authority to lodge the communication: it is important that any representative shows they have the written authority of the alleged victim before lodging.

Once the client's signed authority is received and the communication prepared it can be faxed it to the Special Rapporteur on New Communications at the UNHCR, at 0015 41 22 917 9022/9011.

For a more detailed discussion of the Optional Protocol Procedure generally, see:

• Complaints (communications) to the UN Human Rights Committee

Important Disclaimer: Australian Lawyers for Human Rights Inc is not registered as a migration agent.  It is not a legal practice. The resources for asylum seekers are provided to help people who want to research, or take action in relation to, the legal situation of asylum seekers. Anyone using these resources should obtain advice from a registered migration agent or a practising lawyer.  Legal advice is available from these places: click here . There may be errors or omissions in the resources. Australian Lawyers for Human Rights Inc has attempted to ensure that the resources are current and accurate, but it is not responsible for the consequences of any errors or omissions .

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