CCPR/C/116/D/2233/2013 5.3 The authors clarify that it was never suggested that Australia had referred their names to the Government of Sri Lanka; rather, Sri Lanka may have provided information on its own initiative to Australia as part of intelligence and law enforcement cooperation between the two countries. In the context of such cooperation, it is reasonable for the authors to infer that Australia may have relied upon some information from Sri Lanka in making its security decisions and that such information could be highly unreliable or prejudicial against Tamils generally and the Liberation Tigers of Tamil Eelam in particular. Furthermore, the authors note that the Security Council has not listed the Liberation Tigers of Tamil Eelam as a terrorist organization. The State party has unilaterally listed the group as an entity associated with terrorism; such an approach has been criticized by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism as incompatible with international human rights law (see A/61/267, para. 39). 5.4 The authors reject the State party’s contentions regarding exhaustion of domestic remedies. Formal legal rights to judicial review of detention and adverse security assessments exist, but the review is practically ineffective and/or too narrow in scope to protect Covenant rights. As regards review of detention, the courts may test whether a detainee is an offshore entry person, but they have no power to consider the substantive necessity of detention. Further, the High Court’s binding precedent in the Al-Kateb case has established that indefinite immigration detention is lawful under domestic law. As regards adverse security assessments, to commence judicial review proceedings an author must first identify a reviewable ground of legal error in the administrative decision. Precisely because the authors are not provided with the reasons or evidence sustaining their adverse security assessments, they are unable to identify legal errors. Commencing speculative proceedings is considered an abuse of court process. 5.5 The authors consider that the decision of the High Court in the Plaintiff M47 case, referred to by the State party, does not apply to their case, insofar as they are unlawful offshore entry persons. The plaintiff in that case was a refugee who had lawfully entered Australia and applied for a protection visa. Furthermore, the High Court upheld the lawfulness of his detention pending a new security assessment. The authors emphasize the following points: first, the plaintiff in that case had been made aware of certain allegations during questioning by the Australian Security Intelligence Organisation and believed he could identify legal errors. A greater degree of disclosure of information was provided to that refugee than was provided to the authors. Some of the authors were not interviewed at all by the Organisation and thus were not put on notice of any allegations at all, and some of those who were interviewed were not notified with adequate specificity of the substance of the allegations against them so as to enable them to respond effectively. Not knowing the essence of the case against them, the authors are unable to determine the basis of the Organisation’s decisions, thus they are unable to identify any legal errors and judicial review is not practically or effectively available to them. Second, since “unlawful” offshore entry persons are ineligible by law to apply for a protection visa, the Plaintiff M47 case cannot apply to the authors. Third, in the Plaintiff M47 case the High Court upheld the lawfulness of the plaintiff’s detention pending a new security assessment and a reconsideration of his protection visa application. Plaintiff M47 thus provides no basis for any of the authors to challenge effectively the lawfulness of their detention in court. 5.6 The authors further argue that there are practical considerations impeding judicial review, namely, pursuing review is expensive for refugees who are in detention, lack any income and are not entitled to legal aid. In a few rare cases, detained refugees with adverse security assessments have sought judicial review because they were able to identify possible legal errors. There is no minimum degree of disclosure that must be provided to an affected person in decisions of the Australian Security Intelligence Organisation. 9