Dark Justice: Australia's Indefinite Detention of Refugees on Security Grounds under International Human Rights Law

By Saul, Ben | Melbourne Journal of International Law, November 2012 | Go to article overview

Dark Justice: Australia's Indefinite Detention of Refugees on Security Grounds under International Human Rights Law


Saul, Ben, Melbourne Journal of International Law


This article examines Australia's security assessment and related detention of refugees in the light of international human rights law. The current domestic legal process typically denies refugees any or adequate notice of the allegations and evidence against them, precludes merits review by an independent administrative tribunal and fails to provide genuine and effective judicial review of security assessments or detention (including a sufficient degree of procedural fairness and disclosure of essential evidence). The result is often indefinite detention of recognised refugees who cannot be removed from Australia and thus remain in a legal black hole where security decisions are immune from scrutiny. The current regime results in systematic violations of Australia's obligations under arts 9(1), 9(2) and 9(4) of the International Covenant on Civil and Political Rights. These violations are not remedied by the High Court of Australia's fairly narrow, technical decision in the 2012 case, Plaintiff M47/2012 v Director-General of Security, or by the creation of the non-binding Independent Reviewer of ASIO assessments.

CONTENTS

I   Introduction

II  The Domestic Legal Situation
      A  Detention and Asylum
      B  Adverse Security Assessments
      C  Detention Pending Removal
      D  Reversion to Detention Pending Processing

III Inconsistency with International Human Rights Law
      A Article 9(1)--Arbitrary or Unlawful Detention on Arrival
          1  No Substantiation of Security Grounds upon Assessment
          2  Australia Has Not Shown that Less Invasive Means Would
             Be Ineffective
          3  The Means Adopted Are Not Tailored to Any Objectively
             Established Risk
          4  The Refugees' Indefinite Detention Is Not Subject
             to Periodic Review
          5  Detention Becomes Arbitrary Where There Is No Reasonable
             Prospect of Removal
          6  The True Purpose of the Refugees' Detention Is Not
             Authorised by Law
          7  The Unlawfulness of Detention after Plaintiff M47
             in October 2012
          8  International Refugee Law Is Relevant as Lex Specialis
          9  Detention Is an Impermissible 'Penalty' under the Refugee
             Convention
          10 Potential Inconsistency with the Exceptional Measures
             under Refugee Law

      B Article 9(2)--No Notice of Reasons for Detention

      C Article 9(4)--No Effective Judicial Review of Detention
          1  Judicial Review of Detention Is Not Available
          2  Effective Judicial Review of the Underlying Adverse
             Security Assessments Is Not Available
          3  Nominal Procedural Fairness Renders Judicial Review
             Formal and Ineffective
          4  Public Interest Immunity Renders Judicial Review Nominal
             ant Ineffective

    IV Conclusion: Moving Away from Security Absolutism

I INTRODUCTION

During and after the vicious end of the protracted civil war in Sri Lanka in May 2009, large numbers of Tamils fled abroad, with the United Nations High Commissioner for Refugees ('UNHCR') estimating that 140 000 Tamils were displaced in 65 countries as of mid-2012). (1) In that period, a small number of Tamil asylum seekers--around 1600--travelled irregularly by boat to claim refugee protection in Australia. (2) Some had spent time in transit countries (such as Malaysia or Indonesia) and had been recognised as refugees by the UNHCR, though none were accorded permanent protection or resettled elsewhere. On arrival in Australia they were mandatorily detained as 'offshore entry persons' and processed under a discretionary 'offshore' refugee determination system with reduced procedural rights. Many were eventually recognised as refugees by the Department of Immigration and Citizenship ('DIAC'). (3)

After their recognition as refugees, they were subjected to an individual security assessment by the Australian Security Intelligence Organisation ('ASIO'), which applied a national security test under domestic law. …

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