Australian Lawyers for Human Rights
- United Nations Human Rights Committee - Example Communication

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1. The alleged victims are nationals of Iraq.   They are of Kurdish ethnicity.

2. The alleged victims arrived in Australian territory  by boat on ........................  They were taken to the Port Hedland Detention Centre.  Mr ....................... made a number requests to be allowed to speak with a lawyer; however these requests were either ignored or refused.

3. On ....................... the alleged victims were interviewed about their background and reasons for coming to Australia.  They requested to be given a lawyer during the interview, but their request was refused. Annexure B:  Unauthorised Arrivals Interview notes dated ........................

4. The alleged victims were held in an isolated section of the detention centre and incommunicado for a period of almost six weeks before they were given access to a legal adviser to assist them in preparing an application to remain in Australia.  

5. On ....................... the alleged victims lodged combined applications for a protection visa, which is the visa class available to persons recognised as refugees under the 1951 Convention Relating to the Status of Refugees and 1967 Protocol.  The principal applicant was the husband, Mr ........................  Annexure C: Application for a Protection Visa dated ........................

6. On ....................... Mr ....................... was interviewed by an officer of the Department of Immigration and Multicultural Affairs (“DIMA”).  Annexure D: Record of Interview dated........................

7. On ....................... the DIMA officer rejected the alleged victims’ application for a protection visa. Annexure E: Letter and Protection Visa Record dated ........................

8. The alleged victims sought merits review of the decision in the Refugee Review Tribunal (“RRT”) and, on ......................., a further submission and Supplementary Statement was provided to the RRT by the alleged victims’ adviser. Annexure F: Further submission dated ....................... and Supplementary Statement dated ........................

9. The alleged victims’ adviser also provided the RRT with a letter from ....................... confirming aspects of the claims: Annexure G:  Letter from the Australian Kurdish Community Association dated ........................

10.  By a decision dated ....................... the RRT affirmed the decision of the DIMA officer not to grant a protection visa to the alleged victims. Annexure H:  Decision and Reasons for Decision of Refugee Review Tribunal dated ........................

11. By letter dated ....................... the alleged victims were informed that their case does not satisfy the requirements for consideration of the exercise of the Minister’s discretion under s 417 of the Migration Act to allow them to remain in Australia on humanitarian grounds. Annexure I:  Letter from DIMA dated ........................

12. The alleged victims sought judicial review of the decision of the RRT and, by a decision dated ......................., the Federal Court of Australia dismissed the application. Annexure J:  Decision of the Federal Court of Australia dated ........................

13. The alleged victims appealed against the decision of the Federal Court and, by a decision dated ....................... the appeal was dismissed by the Full Federal Court of Australia. Annexure K:  Decision of the Full Federal Court of Australia dated ........................

14. On ....................... the alleged victims lodged an Application for Special Leave to Appeal to the High Court of Australia.   Annexure L:  Application for Special Leave to Appeal to the High Court of Australia.

15. The alleged victims are awaiting a hearing date on their application for special leave to appeal to the High Court.  They have no funds and no legal aid is available for asylum seekers wishing to challenge decisions in the Australian courts.  It is likely that they will be unrepresented in their application to the High Court.

16. The primary grounds for the alleged victims’ claim for asylum were set out in Mr .......................’s statutory declaration dated ........................ They were as follows:

    (a)    .......................
    (b)    .......................
    (c)    .......................
    (d)    .......................
    (e)    .......................
    (f)    ........................
    

17. The RRT rejected Mr .......................’s claims entirely on credibility.

18. The RRT accepted that Mr ....................... came from ......................., that he is a supporter of the ....................... Party, and that he may have been involved in ....................... Party meetings and demonstrations.

19. Treatment of the alleged victims since their arrival in Australia:

20. The alleged victims were taken into immigration detention upon arrival in Australia and they have been held in immigration detention ever since.  Under Australia’s domestic law there is no provision which would enable the release of the alleged victims into the community pending the determination of their claim for a protection visa.  There has been no assessment of whether there are any risk factors which would tend to favour the prolonged detention of the alleged victims, such as health, security or public safety factors; nor has there been any assessment of whether they are at risk of absconding.

21. The alleged victims were refused access to a legal adviser for almost six weeks after arriving in Australia.   They were held incommunicado and, despite making a number of requests to see a lawyer, no access to a lawyer was provided.

22. The alleged victims have been mistreated while they have been held in detention in Australia.  The following incidents have occurred:
    (a)    .......................
    (b)    .......................
    (c)    .......................
    (d)    .......................
    (e)    .......................
    (f)    ........................
    

23. The alleged victims are currently being held in the Port Hedland Detention Centre.

1.    In its General Comment No 15/27 of 22 July 1986 (Position of Aliens), the Human Rights Committee stated that the rights and obligations recognised by the ICCPR apply to all persons within the territory of a State and subject to its jurisdiction, irrespective of his or her nationality or statelessness.   The alleged victims are therefore protected by the provisions of the ICCPR, regardless of their status as non citizens.

Breaches of Article 7:

2.    The alleged victims claim that Australia is in actual or potential breach of Article 7 of the ICCPR, which relevantly states:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment and punishment.

3.    The aims of article 7 are set out in General Comment 20 of 10 April 1992 (at paragraph 2):

The aim of the provisions of article 7 of the International Covenant on Civil and Political Rights is to protect both the dignity and the physical and mental integrity of the individual. It is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.

4.    No derogation from Article 7 is allowed (General Comment 20, paragraph 3).

5.    The first breach of Article 7 claimed by the alleged victims is the manner in which they have been treated in detention since their arrival in Australia:

(a)    ........................

(b)    ........................

(c)    ........................

6.    The second breach of Article 7 claimed by the alleged victims will occur if they are forcibly removed to Iraq.   In this respect, the Committee has previously stated that:

…States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement. States parties should indicate in their reports what measures they have adopted to that end.

7.    The Committee has recognised in its jurisprudence that if a State party takes a decision concerning a person within its jurisdiction, and the necessary and foreseeable consequence is that this person’s rights under the ICCPR will be violated in another jurisdiction, the State party itself may be in violation of the ICCPR.  

8.    The alleged victims submit that, if they are deported to Iraq, it is a necessary and foreseeable consequence of such deportation that they will be exposed to the risk of a violation of their rights.

9.    While Mr .......................’s claims were rejected by the RRT, the Committee is not bound to accept any findings of fact, including credibility findings, made by the RRT.  It is submitted that the Committee should follow the practice of the Committee Against Torture (“the CAT”) when determining claims under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Torture Convention”).  The CAT takes the view that, while considerable weight will be given to findings of fact that are made by organs of the State party concerned, it is not bound by such findings and instead has the power under Article 22(4) of the Convention to freely assess the facts based upon the full set of circumstances in every case.   The Committee has a similar power under Article 5(1) of the First Optional Protocol to the ICCPR which, it is submitted, enables it to come to its own conclusions as to the facts of a case.

10.    It is relevant that the findings by the RRT as to the credibility of Mr .......................’s account were not based upon any inconsistencies in his evidence; nor was there any independent evidence that Mr ....................... had relied on forged documents in support of his claims.  The RRT simply did not believe Mr ......................., repeatedly stating that his account was “implausible”. 

11.    Based upon its own access to information about Iraq, the Committee is able to form its own conclusions as to the plausibility of Mr .......................’s account.  In these circumstances, it would be open to the Committee to disregard or give little weight to the findings of fact in relation to Mr .......................’s claims after considering the full circumstances of the case. 

12.    Moreover, regardless of the RRT’s findings on credibility, the so-called implausibilities in Mr .......................’s account are not of such nature as to be conclusive to the assessment of the risk under which he and his son might be if they are forced to return to Iraq.   In this respect, the findings that Mr ....................... is of Kurdish ethnicity and that he is a supporter of the ....................... Party from ....................... are alone sufficient to establish that he is at risk of torture or similar treatment upon return to Iraq.

13.    The recent history of Iraq is of a country in which there is a consistent pattern of gross, flagrant or mass violations of human rights.    In February 1999 the Special Rapporteur on Iraq noted:

At the beginning of 1992, the Special Rapporteur concluded that the gravity of the human rights situation in Iraq had few comparisons in the world since the end of the Second World War. The Special Rapporteur regrets that since then he has had no cause to change his view. The prevailing regime in Iraq has effectively eliminated the civil rights to life, liberty, physical integrity, and the freedoms of thought, expression, association and assembly; the rights of political participation have been flouted, while all available resources have not been used to ensure the enjoyment of economic, social and cultural rights. Indeed, the Special Rapporteur has concluded that the politico-legal order in Iraq is not compatible with respect for human rights and, rather, entails systematic and systemic violations throughout the country, affecting virtually the whole population…

…The established State structure, based on an omnipresent State party, the absence of a short-, medium- or long-term democratic project, and the fact that there is no institution capable of controlling the abusive exercise of power all lead the Special Rapporteur to conclude that the Iraqi people do not enjoy, and will not enjoy in the foreseeable future, respect for their human rights. 

14.    More recently, Human Rights Watch made the following comments in relation to human rights developments in Iraq and Iraqi Kurdistan:

The government continued its forced expulsion of Kurds and Turkmen from Kirkuk, Khaniqin, Makhmour, Sinjar, Tuz Khormatu, and other districts as part of its `Arabization' program. Those expelled included individuals who had refused to sign so-called "nationality correction" forms, introduced by the authorities prior to the 1997 population census, requiring members of ethnic groups residing in these districts to relinquish their Kurdish or Turkman identities and to register officially as Arabs. The Iraqi authorities also seized their property and assets; those who were expelled to areas controlled by Kurdish opposition forces were stripped of all possessions and their ration cards were withdrawn. A smaller number, mostly Turkmen, were forcibly expelled to central and southern Iraq, including al-Ramadi, and were allowed to take some of their possessions. In both cases, the Iraqi authorities frequently detained heads of households until the expulsions were complete. Over 800 people were reportedly expelled between January and June, bringing the total number of those expelled since 1991 to over 94,000, according to Kurdish opposition sources. 

The Iraqi government continued to commit widespread and gross human rights violations, including arbitrary arrests of suspected political opponents, executions of prisoners, and forced expulsions of Kurds and Turkmen from Kirkuk and other districts. Known or suspected political opponents living abroad were reportedly frequently targeted and threatened by Iraqi government agents.

15.    In summary, therefore, it is apparent that the alleged victims face a grave risk of serious mistreatment if they are returned to Iraq, and that to do so would expose Australia to a breach of Article 7 of the ICCPR.

Breaches of Article 9:

16.    The alleged victims submit that their prolonged detention by Australia is also in breach of articles 9(1) and 9(4) of the ICCPR.

17.    Article 9 relevantly provides as follows:

1.    Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

 . . .

4.    Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

18.    The alleged victims are being detained under s. 189(1) of the Migration Act 1958, which provides:

1)    If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.

(2)    If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a)    is seeking to enter the migration zone; and

(b)     would, if in the migration zone, be an unlawful non-citizen;

the officer must detain the non-citizen.

19.    The effect of s. 189 is that the alleged victims cannot be released from detention under any circumstances. There is no provision which would allow them to be released from detention, either administratively or by a court.

20.    The alleged victims submit that the circumstances of this case are no different in principle than those in the case of A v Australia.    The Committee’s Views in that case were as follows:

…remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence.

The Committee observes however, that every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed.  In any event, detention should not continue beyond the period for which the State can provide appropriate justification.  For example, the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individual, such as the likelihood of absconding and lack of cooperation, which may justify detention for a period.  Without such factors detention may be considered arbitrary, even if entry was illegal.  In the instant case, the State party has not advanced any grounds particular to the author’s case, which would justify his continued detention for a period of four years…The Committee therefore concludes that the author’s detention for over a period of four years was arbitrary within the meaning of article 9, paragraph 1.

In the Committee’s opinion, court review of the lawfulness of detention under article 9, paragraph 4, which must include the possibility of release, is not limited to mere compliance of the detention with domestic law…[W]hat is decisive for the purposes of article 9, paragraph 4, is that such review is in its effects, real and not merely formal…As the State party’s submissions in the instant case show that court review available to A was, in fact, limited to a formal assessment of the self-evident fact that he was indeed a ‘designated person’ within the meaning of the Migration Amendment Act, the Committee concludes that the author’s right, under article 9, paragraph 4, to have his detention reviewed by a court, was violated.

21.    In the present case, the Australian immigration authorities have given no justification for the prolonged detention of the alleged victims, as was the case in A v Australia.  Similarly, while the alleged victims are being held under differing provisions than in that case, the effect of the relevant legislation in the present case is the same, in that there is no provision for them to be able to make an effective application for review of their detention by a court.

22.    It is submitted, therefore, that Australia is also in breach of articles 9(1) and 9(4), and that the alleged victims should therefore be given adequate compensation for their detention under article 2(3) of the ICCPR.

Breaches of Article 10:

23.    Article 10(1) of the ICCPR states:

    All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

24.    Article 10(1) is universally applicable. The Committee’s General Comment No 21/44 of 6 April 1992 (Rights of Detainees) states that article 10(1) applies to:

    ...anyone deprived of liberty under the laws and authority of the State who is held in prisons, hospitals - particularly psychiatric hospitals - detention camps, or correctional institutions or elsewhere.

25.    In general terms, the Committee has held that any incommunicado detention is in breach of article 10(1).   The shortest period of detention incommunicado to result in a finding of  violation of Article 10(1) has been fifteen days , and other decisions involve detention incommunicado for periods of 44 days ,  three months , and five months.  

26.    In addition, the Committee is referred to the comment by the UN Special Rapporteur on torture, who has said that incommunicado detention “should not exceed seven days”, including regular visits by a doctor, followed by a right to see “a lawyer and/or doctor” of choice immediately afterwards.  

27.    The UN Special Rapporteur on States of Emergency has also drawn attention to the high incidence of people detained incommunicado even for short periods during states of emergency, and has called for guarantees against incommunicado detention, and the right of “habeas corpus or other prompt and effective remedy” to be treated as non-suspendible.  There is no suggestion that Australia faced a state of emergency during the period which is the subject of this Communication.

28.    The Human Rights Committee has also interpreted article 10(1) to go beyond the issue of incommunicado detention simpliciter, so as to import the obligations of a State to accord the minimum standards of humane treatment in the conditions of detention, as found in other international instruments including the Standard Minimum Rules for the Treatment of Prisoners (“the Standard Minimum Rules”), and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (“the Body of Principles”).

29.    This interpretation, it is submitted, is consistent with the traveaux prepatoires for the ICCPR.  In its 1958 report dealing with article 10 in its draft form, the Third Committee of the General Assembly made express reference to the Standard Minimum Rules, and specifically stressed that they should be taken into account in interpreting and applying article 10.  

30.    Moreover, in its General Comment on the Rights of Detainees, which deals specifically with article 10, the Human Rights Committee has made the following comment:

5.  States parties are invited to indicate in their reports to what extent they are applying the relevant United Nations standards applicable to the treatment of prisoners: the Standard Minimum Rules for the Treatment of Prisoners (1957), the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), the Code of Conduct for Law Enforcement Officials (1978) and the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1982).

31.    In April 1995, the Human Rights Committee confirmed the relevance of the Standard Minimum Rules to Article 10 of the ICCPR. In its consideration of the Report submitted by the United States of America, the Committee called for a guarantee that persons deprived of their liberty in U.S. prisons

...be treated with humanity and with respect for the inherent dignity of the human person, and implementing the United Nations Standard Minimum Rules for the Treatment of Prisoners...

32.    It is therefore submitted that when determining any communication under Article 10(1), the Committee is entitled to take into account the principles set out in the Standard Minimum Rules and the Body of Principles.

33.    It is submitted that Australia is in breach of Article 10(1) in the following respects:

(a)    In the general treatment of the alleged victims while in detention (see above comments in relation to Article 7).

(b)    In holding the alleged victims in incommunicado detention, including the refusal to provide them with immediate access to a lawyer.

Breaches of Article 24(1):

34.    Article 24(1) states:

Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

35.    This provision entails “the adoption of special measures to protect children, in addition to the measures that States are required to take under article 2 to ensure that everyone enjoys the rights provided for in the Covenant”.

36.    There has been no justification provided for the prolonged detention of the child ........................  His detention and treatment is grossly breach of Article 24 which, it is submitted, should be applied in a similar way to the obligations set out in the Convention on the Rights of the Child.  No consideration has been given to whether it is in his best interests to have spent almost half his life in detention; no consideration has been given to his release.  His detention has been used as a measure of first resort, rather than last resort. 

37.    It is no answer to say that that the best interests of ....................... are served by keeping him in detention with his parents.  No justification for the prolonged detention of his parents has been provided by Australia, and there is no reason why both parents and son could not have been released from detention pending the determination of their claims for asylum.

38.    Clearly, the detention of ....................... is in breach of Article 24.

(a)    That, as an interim measure, Australia should be requested not to remove the alleged victims  pending the determination of this communication.
(b)    That the treatment of the alleged victims amounts to a violation of articles 7, 9(1), 10(1), and 24(1)of the ICCPR.