CCPR/C/132/D/2365/2014 Advance unedited version
7.3
The Committee notes the authors’ claim that they have exhausted all available
domestic remedies. The Committee also notes the State party’s argument with respect to
claims under article 9 of the Covenant that the authors had access to the judicial review of
the legality of their detention in accordance with the Migration Act and the Australian
Constitution. However, the Committee considers that the State party has not demonstrated
the availability of this remedy for the authors and has not shown that its courts have the
authority to make individualized rulings on the justification for each author’s detention.3 In
the absence of objections by the State party in that connection with respect to the remaining
claims of the authors, the Committee considers that the requirements of article 5 (2) (b) of
the Optional Protocol have been met.
7.4
As to the State party’s argument that the authors’ claims about their potential transfer
to Nauru under article 7, as well as articles 9 (1) and (4), 10, 17, 23, and 24 of the Covenant
should be declared inadmissible owing to insufficient substantiation, the Committee notes
that as of late 2014 the State party had no intention of transferring the authors to Nauru or
any other offshore facility. In these circumstances, the Committee considers that the authors
have not sufficiently substantiated their claims and therefore declares this part of the
communication inadmissible pursuant to article 2 of the Optional Protocol.
7.5
The Committee notes the authors’ claims that conditions of their detention on
Christmas Island and on the Australian mainland were inadequate contrary to requirements
of articles 7, 10, 17, and 23 of the Covenant. The Committee observes that the authors made
only general statements in support of their claims. The Committee considers, consequently,
that the authors have not sufficiently substantiated their claims for purposes of admissibility,
and that this part of the communication must therefore be declared inadmissible in
accordance with article 2 of the Optional Protocol.
7.6
The Committee notes, with respect to the authors’ claims under articles 17, 23 and 24
of the Covenant that some of them have been separated from their relatives living on the
Australian mainland, that it has only been provided with explanation on the family situation
of B.A.A. The Committee considers that B.A.A.’s claims have been sufficiently substantiated
for purposes of admissibility and declares them admissible. Similar claims brought on behalf
of the remaining authors have been insufficiently substantiated for purposes of admissibility
and must therefore be declared inadmissible in accordance with article 2 of the Optional
Protocol.
7.7
With regard to the authors’ claims under article 2 (3) of the Covenant, the Committee
recalls its jurisprudence to the effect that the provisions of article 2 of the Covenant set forth
a general obligation for States parties and cannot give rise, when invoked separately, to a
claim in a communication under the Optional Protocol. Consequently, the Committee
declares this part of the communication to be inadmissible under article 3 of the Optional
Protocol.
7.8
Regarding the claims under articles 9 (1) and (4), and 24 of the Covenant about the
authors’ detention on Christmas Island, the Committee considers that they have been
sufficiently substantiated for purposes of admissibility and declares them admissible.
7.9
The Committee accordingly decides that the communication is admissible insofar as
it appears to raise issues about detention on Christmas Island under articles 9 (1) and (4), and
24 of the Covenant with respect to all authors and under articles 17, 23 and 24 of the Covenant
with respect to B.A.A.
Consideration of the merits
8.1
The Committee has considered the communication in the light of all the information
made available to it by the parties, as required under article 5 (1) of the Optional Protocol.
8.2 The Committee notes B.A.A.’s claim that he was not allowed to reside with his brother,
who had arrived to Australia 12 months earlier in violation of articles 17, 23 and 24 of the
Covenant. The Committee recalls that, in accordance with the submissions of the parties, the
author arrived to Christmas Island in October 2013. At that time his brother was in
3
8
See, F.K.A.G. et al. v. Australia (CCPR/C/108/D/2094/2011), para. 8.3.