Indefinite security detention and refugee children and families in Australia: international human rights law dimensions.

• Author: Saul, Ben
• Position: Creating New Futures for All: International Law and the Protection of Migrant Children at Risk

Abstract

Under Australian law, the children of refugee parents executively assessed as national security risks can be indefinitely held in administrative detention without effective judicial safeguards. This article examines the international human rights law impacts of adverse security assessments affecting refugee parents, children and families in Australian immigration detention centres. It argues that the Australian approach involves arbitrary interference in family life under the International Covenant on Civil and Political Rights ('ICCPR') art 17(1) and a related failure to protect family life under the ICCPR art 23(1); a failure to take into account the best interests of the child under art 3(1) of the Convention on the Rights of the Child ('CRC') and art 24(1) of the ICCPR; and arbitrary detention of children under art 9 of the ICCPR and art 37 (b) of the CRC. In doing so it indicates the procedural reforms necessary to bring Australian law and practice into conformity with its international obligations.

Introduction

Before a protection visa can be granted in Australia, a refugee must be assessed by the Australian Security Intelligence Organisation ('ASIO') as not posing a risk to security, (1) as defined in the ASIO Act 1979 (Cth). (2) The requirement applies to applicants who are lawfully present in Australia and entided to apply for a visa, as well as those who entered as 'offshore entry persons' and are 'unlawful non-citizens'. (3) Normally security assessment takes place after a person has been determined to be a refugee. The security criteria are additional to the grounds for exclusion from refugee status under art IF of the Convention Relating to the Status of Refugees (4) art IF and the exception to non-refoulement under art 33(2) of that Convention, which are also part of Australian law. (5)

There has been much attention to the manifest procedural unfairness in the ASIO security assessment process of non-citizens, (6) which can deny people the opportunity to know the case against them and thus prevent them from effectively challenging the allegations. Merits review is precluded altogether and judicial review may be practically ineffective in the absence of the ability to know and challenge the adverse evidence. Unlike many other democracies, (7) Australia has not introduced special procedures such as a Special Advocate to help balance the competing interests in security and fairness. At most, a non-statutory, administrative review process was established in 2012, but with no power to bind ASIO.

The usual consequence of an adverse security assessment is that a refugee is refused entry to the Australian community and held in indefinite immigration detention. Such people are ostensibly detained on the basis that they are being held pending removal from Australia, despite Australia agreeing that, as refugees, they cannot be sent back to home countries of persecution, and despite the practical difficulty that no other safe country has agreed to admit them. Between 2010 and mid-2013, around 60 refugees found themselves in this predicament, with some detained for almost four years, and many for three years. Sustained criticism of their indefinite detention, (8) including its adverse mental health effects, has failed to move the government to change the legal regime. Since 2011, 51 refugees have complained to the United Nations Human Rights Committee alleging violations of Australia's obligations under the International Covenant on Civil and Political Rights. (9) The Committee resolved two complaints in favour of 46 refugees in mid-2013, (10) while a third complaint (covering five refugees) is pending.

This article focuses on a specific aspect of the above regime which has not thus far received as much scholarly attention: the international human rights law implications for refugee children and families affected by adverse security assessments and consequent detention. So far, children have seldom received adverse security assessments of their own, although in some cases their refugee claims depend on those of their parents. However, children have been squarely affected by the process in two distinct ways: they have lived either in detention alongside detained parents, or have lived in the community separated from a detained parent. In total thus far, at least two families with children have been detained, while at least one family was separated by the detention of a parent when a child lived in the community. Of course, many other refugees are single men who are typically separated from close family members overseas (who are not in the physical jurisdiction of Australia). It should be emphasised, however, that as refugees (and despite their security assessments) such detainees enjoy an international legal right of family reunion. There are accordingly still obligations on Australia as the country of asylum to facilitate reunification.

Both of these detention situations involving families raise interrelated issues under the ICCPR and the Convention the Rights of the Child, (11) which are the focus of this analysis. Specifically, such situations raise questions of arbitrary interference in family life under art 17(1) of the ICCPR and the related failures to protect family life under art 23(1) of the ICCPR; failure to take into account the best interests of the child under art 3(1) of the CRC and art 24(1) of the ICCPR; and arbitrary detention of children under art 9 of the ICCPR and art 37(b) of the CRC. This article will examine these issues by reference to two refugee families affected by the ASIO security assessment and detention regime and whose situations are on the public record. (12) One family was detained as a group, while the other case involved a child in the community separated from a detained parent. (13)

II Does Detention 'Interfere' in Family Life?

Article 17(1) of the ICCPR provides that '[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation'. A preliminary question is whether detention 'interferes' with family life, before consideration of when such interference may be justified.

The legal issues are well illustrated by the jurisprudence of the UN Human Rights Committee and arguments made by states before it in individual complaints brought under the First Optional Protocol to the ICCPR. In its submissions to the UN Committee, the Australian government has maintained that there may be 'interference' in the family where family members are separated by government action, but not where action merely produces 'substantial changes to long-settled family life'. (14) Thus the removal of some family members from a state may interfere in family life, as was the case on the facts in Bakhtiyari v Australia (15) However, on this view there is no interference where all family members are detained together and their 'ordinary' family life is merely altered by detention. Nor is there interference where some family members are detained and separated from others not in detention, where those outside detention are able to visit those in detention periodically.

The position articulated by Australia explicitly rejects the UN Human Rights Committee's view in Winata v Australia. In that case, there was an 'interference' when Australia decided to deport two parents and thereby compelled the family to choose whether a 13-year-old Australian citizen child, who had lived in Australia for 10 years, remained alone in Australia or accompanied his parents, and where this would involve 'substantial changes to long-settled family life'. (16) Instead, Australia prefers the dissenting view of four Committee members in Winata v Australia, who suggested that family separation was not 'inevitable' in that case and challenged the majority's test of 'substantial changes to long-settled family life':

While this term does appear in the jurisprudence of the European Court of Human Rights, the Committee fails to examine whether it is an appropriate concept in the context of article 17 of the Covenant, which refers to interference in the family, rather than to respect for family life mentioned in article 8 of the European Convention. It is not at all evident that actions of a State party that result in changes to long-settled family life involve interference in the family, when there is no obstacle to maintaining the family's unity. (17) The dissenting members saw 'no need to express a final opinion on this question' on the facts because they believed that any interference would not, in any case, be arbitrary.

The majority's view is more protective of the family and is to be preferred. The family is described as the 'the natural and fundamental group unit of society' in art 23(1) of the ICCPR and art 10(1) of the International Covenant on Economic, Social and Cultural Rights. (18) Disruption of the family is accordingly not to be lightly presumed under the twin Covenants. The language of art 17 is not limited to safeguarding the family against 'separation' or 'disunity', but against 'interference', which on an ordinary interpretation connotes a wide spectrum of measures that may impede or obstruct the ordinary course of family life.

European regional human rights jurisprudence on family rights supports this approach. Under art 8 of the European Convention on Human Rights, (19) a central feature of 'respect' for family life is the right to live together so that family relationships may 'develop normally' (20) and so that family members can 'enjoy each other's company'. (21)

Aside from the deportation context, which involves a particularly acute form of interference, detention is arguably an area of government action that potentially interferes in the family. Thus the AHRC has criticised the 'difficulties of trying to maintain a "normal family life'" in situations of protracted detention. (22)...