Australia Responsible For Arbitrary Detention Of Asylum Seekers In Offshore Facilities, UN Human Rights Committee Finds

Geneva, 9 January 2025

In two landmark decisions, the UN Human Rights Committee has ruled that Australia remained responsible for the arbitrary detention of asylum seekers redirected or transferred to offshore detention facilities in the Republic of Nauru.

The Committee published its Decisions today about two cases involving refugees and asylum seekers who have endured prolonged and arbitrary detention in the Regional Processing Centre in Nauru. Australia signed Memoranda of Understanding with Nauru in 2012 and 2013, allowing Australia to forcibly redirect and transfer asylum seekers to the Pacific Island nation for processing.

“A State party cannot escape its human rights responsibility when outsourcing asylum processing to another State,” said Committee member Mahjoub El Haiba, adding that, “Where a State exercises effective control over an area, its obligations under international law remain firmly in place and cannot be transferred.”

In the first case, 24 unaccompanied minors from Iraq, Iran, Afghanistan, Pakistan, Sri Lanka and Myanmar were intercepted at sea by Australia while fleeing persecution in their home countries and enroute to Australia. They were first brought to Christmas Island, an Australian territory in the Indian Ocean, between 2013 and 2014 and placed in mandatory immigration detention for between 2 and 12 months.

They were then transferred to Nauru in 2014 and detained at the overcrowded Regional Processing Centre with insufficient water supply and sanitation, high temperatures and humidity, as well as inadequate healthcare. Almost all of these minors have suffered from deterioration of physical and mental well-being, including self-harm, depression, kidney problems, insomnia, headaches, memory problems and weight loss.

Despite all but one of these minors being granted refugee status around September 2014, they remained detained in Nauru.

In the second case, an Iranian asylum seeker arrived by boat on Christmas Island with her husband, stepfather, stepsister, and male cousin without valid visas in August 2013. Seven months later, she was transferred to Nauru and detained at the Regional Processing Centre. She was recognised as a refugee by the authorities in Nauru in April 2017 but was not released immediately. Thirteen months after the granting of her refugee status, she was moved to a Support Accommodation Area in Nauru for healthcare services. She was subsequently transferred to mainland Australia in November 2018 for medical reasons but was still detained in various facilities.

Victims from both cases filed complaints to the Human Rights Committee, claiming Australia had violated its obligations under the International Covenant on Civil and Political Rights (ICCPR), particularly Article 9 regarding arbitrary detention.

Australia opposed the allegations, stating there was no prima facie substantiation that the alleged violations in Nauru had occurred within Australia’s jurisdiction.

The Committee, however, observed that pursuant to various public and official sources, Australia had arranged for the construction and establishment of the Regional Processing Centre in Nauru and directly contributed to its operation through financing, contracting with private and other entities which were accountable to Australia, and management.

The Committee recalled its earlier jurisprudence and its General Comment No. 31, which defines the principle of “power or effective control” when establishing the exercise of jurisdiction.

“It was established that Australia had significant control and influence over the regional processing facility in Nauru, and thus, we consider that the asylum seekers in those cases were within the State party’s jurisdiction under the ICCPR,” said El Haiba.

In the first case regarding 24 unaccompanied minors, the Committee found that Australia failed to justify why they could not have been transferred to community detention centres on the mainland, which are more tailored to meet the specific needs of vulnerable individuals. The Committee thus concluded that Australia had violated Article 9 (1) of the ICCPR, which guarantees the right to be free from arbitrary detention. In addition, given that the minors did not have an effective channel to challenge the legality of their detention before domestic courts, the Committee also found that Australia had violated article 9 (4) of ICCPR regarding the right of people deprived of liberty to bring their claims to court.

In the case concerning the Iranian refugee, the Committee observed that Australia had not demonstrated on an individual basis that the victim’s prolonged and indefinite detention was justified. The Committee thus found that Australia had violated Article 9(1).

“These decisions send a clear message to all States: Where there is power or effective control, there is responsibility. The outsourcing of operations does not absolve States of accountability. Offshore detention facilities are not human-rights free zones for the State party, which remains bound by the provisions of the Covenant,” said El Haiba.

The Committee called on Australia to provide adequate compensation to the victims and take steps to ensure that similar violations do not recur. Specifically, it urged a review of migration legislation and bilateral transfer agreements to align with international human rights standards.

The full Decisions of both cases are now available online:
M.I. et al. v Australia
Nabhari v Australia

© Scoop Media