CCPR/C/116/D/2233/2013 justified as reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time.8 Asylum seekers who unlawfully enter a State party’s territory may be detained for a brief initial period in order to document their entry, record their claims, and determine their identity if it is in doubt. To detain them further while their claims are being resolved would be arbitrary absent particular reasons specific to the individual, such as an individualized likelihood of absconding, danger of crimes against others, or risk of acts against national security. The decision must consider relevant factors case by case, and not be based on a mandatory rule for a broad category; must take into account less invasive means of achieving the same ends, such as reporting obligations, sureties or other conditions to prevent absconding; and must be subject to periodic reevaluation and judicial review. The decision must also take into account the mental health condition of those detained. Individuals must not be detained indefinitely on immigration control grounds if the State party is unable to carry out their expulsion. The inability of a State party to carry out the expulsion of an individual does not justify indefinite detention.9 10.4 The Committee observes that the authors were kept in immigration detention from 2009 or 2010 to 2015, first under mandatory detention upon arrival and then as a result of adverse security assessments. Whatever justification there may have been for an initial detention, such as for purposes of ascertaining identity and other issues, the State party has not, in the Committee’s opinion, demonstrated on an individual basis that their continuous indefinite detention was justified. The State party has not demonstrated that other, less intrusive, measures could not have achieved the same end of compliance with the State party’s need to respond to the security risk that the authors were said to represent. Furthermore, the authors were kept in detention in circumstances where they were not informed of the specific risk attributed to each of them and of the efforts made by the Australian authorities to find solutions that would allow them to obtain their liberty. They were also deprived of legal safeguards allowing them to challenge effectively the grounds for their indefinite detention. For all these reasons, the Committee concludes that the detention of the authors was arbitrary and contrary to article 9 (1) of the Covenant. Claims under article 9 (4) 10.5 Regarding the authors’ claim that their detention could not be challenged under Australian law and that no court had jurisdiction to assess the substantive necessity of their detention, the Committee notes the State party’s argument that the authors could seek judicial review before the High Court of the legality of their detention and the adverse security assessment. In view of the High Court’s 2004 precedent in Al-Kateb v. Godwin declaring the lawfulness of indefinite immigration detention, and the absence of relevant precedents in the State party’s response showing the effectiveness of an application before the High Court in similar more recent situations, the Committee is not convinced that it is open to the Court to review the justification of the authors’ detention in substantive terms. Furthermore, the Committee notes that in the High Court’s decision of 5 October 2012 in the Plaintiff M47 case, the Court upheld the continuing mandatory detention of the refugee, demonstrating that a successful legal challenge need not lead to release from arbitrary detention. The Committee recalls its jurisprudence that judicial review of the lawfulness of detention under article 9 (4) is not limited to mere compliance of the detention with domestic law, but must include the possibility to order release if the detention is 8 9 See communications No. 560/1993, A v. Australia, Views adopted on 3 April 1997, paras. 9.3-9.4; and No. 1557/2007, Nystrom v. Australia, Views adopted on 18 July 2011, paras. 7.2-7.3. See also general comment No. 35, para. 18. See communication No. 2136/2012, M.M.M. et al. v. Australia, Views adopted on 25 July 2013, para. 10.3. See also general comment No. 35, para. 18. 17