Sri Lankan refugees v Commonwealth of Australia (Department of Immigration & Citizenship)

Former President of the Australian Human Rights Commission, Ms Catherine Branson QC, has found that ten Sri Lankan refugees with adverse security assessments from ASIO were arbitrarily detained in closed immigration detention facilities.

The conduct has also affected three Sri Lankan children who have been granted protection visas but are residing in immigration detention with their parents.

“It appears that no comprehensive and individualised assessment has been undertaken in respect of each complainant to assess whether they pose any risk to the Australian community and whether any such risk could be addressed (for example by the imposition of particular conditions) without their being required to remain in an immigration detention facility,” Ms Branson said.

Ms Branson did not express any view as to what the outcome of any such consideration in each particular case would be.

Seven of the complainants arrived at Christmas Island between June and July 2009. Five other complainants initially sought to enter Australia on board the Oceanic Viking and were eventually brought to Australia from Indonesia in December 2009. One child was born in immigration detention after arriving in Australia.

All of the complainants were found to be refugees, either by Australia or by UNHCR. All of the adult complainants eventually received an adverse security assessment from ASIO recommending that a protection visa not be granted.

Ms Branson found that the Department of Immigration and Citizenship failed to ask ASIO to assess whether six of the refugees were suitable for community based detention while they were waiting for their security clearance. Information provided by ASIO suggested that community detention assessments could be conducted within 24 hours. Instead, these six refugees were held in closed detention for between 5 months and 21 months while a security assessment in relation to the grant of a visa was carried out.

Ms Branson also found that after the complainants received their adverse security assessment from ASIO, the department failed to assess whether the circumstances of each individual complainant indicated that they could be placed in less restrictive forms of detention. Instead, the Minister determined not to allow anyone with an adverse security assessment in relation to a visa application to be placed in community detention.

However, it appears that this determination was based on an incorrect view that advice from ASIO about whether a visa should be granted also amounted to advice from ASIO about whether community detention was appropriate.

The failure of the department to take these steps raised the real possibility that each of the complainants was either detained unnecessarily or detained in a more restrictive way than their circumstances required. The detention of the complainants in these circumstances was arbitrary and in breach of article 9(1) of the ICCPR.

In the case of the Rahavan family of two parents and three children, Ms Branson found that the failure to consider fully alternatives to closed detention amounted to a breach of articles 3 and 37(b) of the Convention on the Rights of the Child.

Ms Branson recommended that the Minister indicate to his department that he will not refuse to consider a person in immigration detention for release from detention or placement in a less restrictive form of detention merely because the department has received advice from ASIO that the person not be granted a visa on security grounds.

Ms Branson also made a series of recommendation to the department. First, that the department refer each of the complainants to ASIO for advice about whether less restrictive detention could be imposed, if necessary subject to special conditions to ameliorate any identified risk to security.
Secondly, that similar advice be sought in relation to other people in immigration detention with adverse security assessments.

Thirdly, that the department refer cases back to the Minister for consideration of alternatives such as community detention along with details of how any potential risk identified by ASIO could be mitigated.

Fourthly, that Australia continue actively to pursue alternatives to detention, including the prospect of third country resettlement, for all people in immigration detention who are facing the prospect of indefinite detention.

The last recommendation was noted by the department. The other recommendations were not accepted by the Minister or the department.

The Commission’s report was tabled in Parliament on 26 November 2012.

As this decision can be reviewed under the Administrative Decisions (Judicial Review) Act, this is the only statement the Commission will be making on this matter.

Sri Lankan refugees v Commonwealth of Australia (Department of Immigration & Citizenship) is online at https://www.humanrights.gov.au/legal/humanrightsreports/AusHRC56.html.