CCPR/C/132/D/2365/2014 Advance unedited version
Detention for eight days. After that, the author was moved and reunited with his brother in a
community detention centre. When the author’s brother turned 18 years old and was granted
a Bridging Visa, he was released from the detention centre. B.A.A.’s brother lives close to
the detention centre. They have regular phone contacts and short-term visits. On several
occasions the author was allowed to stay with his brother for short periods of time. To take
on custodianship from social services, the author’s brother should be 21 years old.
Consequently, there was no violation of B.A.A.’s rights under articles 17 and 23 of the
Covenant.
4.11 The State party, referring to the author’s claims under article 24 of the Covenant,
recalls relevant provisions of domestic law and submits that all authors have access to
comprehensive social aid while in detention or when released on Bridging Visas. Several
NGOs are contracted to provide help and assistance to migrants. Unaccompanied minors are
assigned to a custodian. As specified above, individuals in detention centres have access to a
wide range of services. Individuals released on Bridging Visas receive income and rent
support, accommodation assistance, orientation, trainings and practical information, health
services. The State party also notes that A.R. was transferred to the Maribyrnong Immigration
Detention Centre from community detention due to behavioral and criminal problems. His
placement in the detention center is regularly reviewed. At the time of his transfer, the author
was considered to be an adult.
4.12 With respect to the claims under article 2, the State party reiterates the authors have
failed to substantiate allegations of breaches of any other substantive provisions of the
Covenant. The State party further notes, that initial remedy sought by the authors, that is
prohibition of their transfer to Nauru, has already occurred through a change in national
policy. All authors are invited to apply for Temporary Protection or Safe Haven Enterprise
visas in Australia.
Authors’ comments on the State party’s observations
5.1
The authors provided their comments on 25 October 2016.
5.2
The authors argue that their claims about conditions of detention on Christmas
Island on the mainland, as well as claims about State party’s non-refoulement
obligations, are sufficiently substantial and supported by e vidence. They further recall
national legislative provisions relevant to the case. The authors submit that the risk of
being transferred to a place where their human rights may be violated existed and is
still present.
5.3
The authors argue that article 7 of the Covenant precludes Australia from
transferring them to Nauru where conditions of detention are well documented.] There
are no sufficient resources and facilities to provide protection and assistance to minors
and meet their needs. The authors refer to the UNHCR conclusions on Nauru 2, which
highlights harshness of conditions for child asylum seekers. The risk of transfer has
drastic effects on their mental health. They all suffer mental anguish, while some of
them became suicidal.
5.4
The authors note that their prolonged detention on Christmas Island caused
them severe mental suffering. Their detention involved humiliation and debasement.
The State party’s submission on conditions of detention on the island are general and
do not indicate specific arrangements implemented for the authors. Cultural, education
and recreational programmes are insufficient to mitigate effects of poor conditions of
detention.
5.5
The authors further argue that their extended detention on Christmas Island was
in violation of article 10 of the Covenant. They note that unaccompanied minors are
extremely vulnerable and require special treatment from national authorities. Migrants
frequently come from dangerous environments, they have mental health problems. The
authors recall that they did not have access to adequate medical and hygienic facilities,
2
6
UNHCR monitoring visit to the Republic of Nauru from 7 to 9 October 2013.