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Ms BK, Ms CO and Mr DE on behalf of themselves and their families v Commonwealth of Australia (Department of Home Affairs)

[2018] AusHRC 128

Report into the practice of the Australian Government of sending to Nauru families with young children who arrived in Australia seeking asylum

The Hon Christian Porter MP

Attorney-General

Parliament House

Canberra ACT 2600



Dear Attorney



I have completed a report pursuant to ss 11(1)(f) and 19(1) of the ºÚÁÏÇ鱨վ Act 1986 (Cth) into the complaints made by Ms BK, Ms CO and Mr DE on behalf of themselves and on behalf of their families (the complainants), against the Commonwealth of Australia, represented by Department of Home Affairs, formerly the Department of Immigration and Border Protection (department). The complaints arose from the practice of the Australian Government of sending to Nauru families with young children who arrived in Australia seeking asylum.



The complainants are the members of three Iranian families, which each had a child who was under six years old when they were taken to Nauru. They complain about the conditions and facilities in the regional processing centre on Nauru and also say that families with babies or young children should not have been sent to Nauru, given the nature of the conditions there.



The complaints raise human rights issues under articles 7, 9(1), 10(1) and 17(1) of the International Covenant on Civil and Political Rights and articles 3, 6(2), 16(1), 24, 27(1) and 37 of the Convention on the Rights of the Child.



As a result of this inquiry, I have found that the regional processing centre on Nauru was not an appropriate place to send families with young children. By engaging in this practice, and by other conduct identified in this report, the Commonwealth breached the human rights of Ms BK, Ms CO and Mr DE and their families. This inquiry and report also considered the conditions facing families at the Nauru regional processing centre more generally.



The department provided a response to my findings and recommendations on 4 December 2018. That response can be found in section 9 of this report.



I enclose a copy of the report.



Yours sincerely,

Richard Lancaster SC

Delegate of the President

ºÚÁÏÇ鱨վ

December 2018

1. Introduction and summary

1. The ºÚÁÏÇ鱨վ has conducted an inquiry into three complaints arising from the practice of the Australian Government of sending to Nauru families with young children who arrived in Australia seeking asylum.  The primary finding of the inquiry is that the regional processing centre on Nauru was not an appropriate place to send families with young children.  By engaging in this practice, and by other conduct identified in this report, the Commonwealth breached the human rights of the members of those families.

2. The inquiry has investigated and assessed the claims made by three Iranian asylum seekers, Ms BK, Ms CO and Mr DE on behalf of themselves and their families (the complainants).  Each family had a child who was under six years old when they were taken to Nauru.  The claims made by those families are considered in detail.  The report also considers the conditions facing families at the Nauru regional processing centre more generally.

3. The inquiry was undertaken pursuant to s 11(1)(f) of the ºÚÁÏÇ鱨վ Act 1986 (Cth) (AHRC Act).

4. The complainants arrived in Australia by boat between 22 and 26 July 2013.  They were initially detained at Christmas Island Immigration Detention Centre before being taken to Nauru pursuant to Australia’s regional processing arrangements.  They complain that they were detained in the regional processing centre on Nauru arbitrarily.  They complain about the conditions in the centre and the impact that detention has had on their physical and mental health.  They also say that families with babies or young children should not have been sent to Nauru, given the nature of the conditions there.

5. The complaints raise human rights issues under articles 7, 9(1), 10(1) and 17(1) of the International Covenant on Civil and Political Rights (ICCPR) and articles 3, 6(2), 16(1), 24, 27(1) and 37 of the Convention on the Rights of the Child (CRC). I reproduce the text of each of those articles in Annexure A to this report.

6. The complainants have asked that I make a direction under s 14(2) of the AHRC Act, prohibiting the disclosure of the identity of each of them and their family members in relation to the complaints.  I have made a direction to that effect because I am satisfied that such a direction is necessary to protect the privacy and human rights of the complainants.  In particular, this report contains personal details of the complainants, including sensitive information about their medical history.  Further, two of the families have not yet been permitted to make applications for refugee status.  Disclosure of their identities may place them at risk if their applications for refugee status are not successful.

7. Throughout this report, I have referred to the complainants using the following pseudonyms: Ms BK, her husband Mr BL and their daughter Miss BM; Ms CO, her husband Mr CP and their son Master CQ; and Mr DE, his wife Ms DF and their son Master DG.

1.1. Decision on jurisdiction

8. At the request of the Commonwealth, I agreed to consider as a preliminary question the scope of the Commission’s jurisdiction to conduct this inquiry.

9. On 4 November 2016 I provided the parties with my decision in relation to jurisdiction.  A copy of my decision in relation to jurisdiction is reproduced in Annexure C to this report.

10. In summary of my decision on jurisdiction in November 2016, I found that Australia has human rights obligations under the ICCPR and the CRC outside of its territory when it is exercising ‘effective control’ over people or territory.  I found that the Commission has jurisdiction to inquire into allegations that the Commonwealth has acted in a way that is inconsistent with or contrary to Australia’s obligations under the ICCPR or the CRC, including where the relevant acts occurred outside of Australia’s territory.  I found in November 2016 that the alleged acts or practices raised by the complaints are ones that, after allowing for as yet undiscovered facts, Australia could be responsible for under a relevant international instrument.

11. In the course of making the decision about jurisdiction, I also decided to continue to inquire into three categories of complaints, namely complaints about:

    • arbitrary detention at the regional processing centre on Nauru

    • treatment in detention that was inconsistent with humanity and with respect for the inherent dignity of the human person

    • the decision to send families with young children to Nauru given the conditions in which they would be detained.

12. In relation to the complaints of arbitrary detention, on the basis of the material available to me at the time of the decision on jurisdiction, and based on the findings of the High Court in Plaintiff M68/2015 v Minister for Immigration and Border Protection (Plaintiff M68),[1] I was not satisfied that the detention of the complainants was an act done directly by the Commonwealth or by organs of the Government of Nauru that were placed at the disposal of the Commonwealth, or under the direction or control of the Commonwealth.  I said that unless new information comes to light in the course of the inquiry, I was minded to find that the detention of the complainants was not an act done by or on behalf of the Commonwealth and was not an act for which the Commonwealth was responsible under international law.

13. In relation to the complaints about treatment in detention, I found that the Commonwealth, including through its contract with Transfield, was exercising a sufficient degree of control over the regional processing centre and over the people within the centre (including the complainants) for its human rights obligations to be engaged with respect to the treatment of people within the centre on Nauru.

14. In relation to the complaints about the transfer to Nauru, I found that there were relevant discretionary acts (and failures to act) made in Australia both by officers of the department and by the Minister into which the Commission has jurisdiction to inquire.  Further, I found that a non-refoulement claim based on a real risk of conduct in another country that would be in breach of articles 9(1) or 10(1) of the ICCPR is a legitimate contention and a complaint into which I may inquire, and that (as the department appeared to acknowledge before November 2016) there are real issues about whether the department’s Best Interests Assessment for children liable to transfer to Nauru is consistent with the CRC.

15. Although the then Department of Immigration and Border Protection, now the Department of Home Affairs (the department), initially said that it did not agree with my decision in relation to jurisdiction, no party has sought to challenge the correctness of that decision.

16. I do not repeat in this report all of the background leading to the making of my decision in relation to jurisdiction.  I set out briefly in section 2.2 below some of steps taken between making that decision and issuing this report in relation to the substance of the complaints.

1.2. Findings on the substance of the complaints

17. This section of the report provides a short summary of my findings on the substance of the complaints.  It should be read together with the findings, and the reasons for those findings, that are set out in the body of the report.  In Annexure B to this report, I set out a table that identifies the key breaches of human rights that I have found in respect of each of the complainants and their family members, along with the paragraphs of this report in which those findings are made.

18. As a result of this inquiry, I find that the regional processing centre on Nauru was not an appropriate place to send families with young children, such as the complainants.

19. I set out in section 5.4 below my assessment of the general conditions of detention in the centre on Nauru.  In relation to the conditions that confronted all of the complainants at the centre, my findings are as follows:

    1. The accommodation in vinyl marquees was not adequate or appropriate in the circumstances, given the adverse living conditions they faced on the phosphate plateau of central Nauru.  This accommodation failed to provide them with sufficient protection from heat, rain and risk of serious disease.  As a result, the accommodation did not provide children with an adequate standard of living, contrary to article 27(1) of the CRC; and it negatively affected their right to survival and development, contrary to article 6(2) of the CRC.

    2. The accommodation of up to five or six families in each marquee with partitions that did not reach the ceiling was contrary to their right to privacy under article 17(1) of the ICCPR and article 16(1) of the CRC.

    3. The deficiencies in the accommodation and overcrowding in the marquees contributed to poor health outcomes and facilitated the spread of illness, contrary to the right of children under article 24(1) of the CRC.

    4. In particular, sending two of the complainant families to Nauru in the middle of a dengue fever epidemic to live in conditions conducive to the spread of this disease was contrary to the rights of their children to survival and development and to health under articles 6(2) and 24(1) of the CRC.

    5. The failure to address identified issues with the infrastructure of the regional processing centre, which carried a risk of traumatic physical injury to children, was contrary to the duty of the Commonwealth under article 3(2) of the CRC to ensure that children have the protection and care that is necessary for their wellbeing.

    6. Taken together, the matters set out above indicate that the complainants were not treated with humanity and with respect for their inherent dignity, contrary to articles 10(1) of the ICCPR and 37(c) of the CRC.

20. I consider some additional specific allegations made by each of the complainant families in sections 5.5, 5.6 and 5.7 below.  In relation to these allegations, my findings are as follows:

    1. The failure to take immediate steps to give effect to the urgent recommendations of treating doctors that Ms BK be transferred to Australia to give birth, as a result of complications in her pregnancy, was contrary to article 10(1) of the ICCPR and 24(2)(d) of the CRC.

    2. Further, the delay in making a decision to transfer Ms BK to Australia to give birth, in light of the advice that this delay was contributing to the development of a psychiatric illness, was contrary to article 7 of the ICCPR.

    3. The combination of the detention environment and the delay in the removal of Ms BK and her family had an adverse impact on the mental health and wellbeing of her daughter Miss BM, contrary to article 10(1) of the ICCPR and article 37(c) of the CRC.

    4. The nature of the environment in which Master DG was detained and his treatment while in detention amounted to a failure to treat him with humanity and with respect for his inherent dignity contrary to article 10(1) of the ICCPR and article 37(c) of the CRC.

    5. The delay in medical treatment for Ms DF’s chronic knee condition and her stress related alopecia was contrary to article 10(1) of the ICCPR.

    6. More significantly, the failure to make any report to the department of the serious impact of detention on Ms DF’s mental health was contrary to rule 25(2) of the Standard Minimum Rules and to article 10(1) of the ICCPR.

21. I consider in section 6 below a range of acts and practices relating to the taking of the complainants to Nauru.  My findings are as follows:

    1. The assessment that there were adequate facilities and services in Nauru for families with children over four months old was a serious misjudgment and a flawed decision that placed the complainants and their young children at serious risk of harm.  The assessment was contrary to the rights of the complainants under articles 3(2), 6(2), 16(1), 24(1), 27(1) and 37(c) of the CRC and article 10(1) of the ICCPR.

    2. The ‘best interests assessment’ conducted by the department prior to sending children to Nauru failed to take the bests interests of children into account as a primary consideration and was therefore contrary to article 3(1) of the CRC.  Further, a process was adopted by the department in circumstances known to the department to involve a significant inconsistency with article 3(1) of the CRC, and the adoption of it amounts to a deliberate breach of the obligations in article 3(1), based on an inflexible policy decision to send asylum seeker families to Nauru.

    3. I am not satisfied that a proper assessment was undertaken as to whether appropriate support services were available to either Ms CO or Mr DE in the regional processing centre on Nauru or that it was appropriate for them to be transferred there given that their presentation prior to transfer suggested serious mental health issues.  As a result, the pre-transfer assessment that there were no barriers to either Ms CO or Mr DE being taken to Nauru was contrary to article 10(1) of the ICCPR.

    4. The ‘best interests assessments’ for each of the children of the complainants did not properly assess whether ‘appropriate care, services and support arrangements’ were available for each of them.  On the contrary, the sparse materials about the ‘assessment’ show that it was inadequate.  Given the conditions in which they would be detained, these decisions, effectively authorising the taking of the children to Nauru, were contrary to the rights of the children under articles 3(2), 6(2), 16(1), 24(1), 27(1) and 37(c) of the CRC and article 10(1) of the ICCPR.

    5. The Minister’s guidelines in relation to s 198AE of the Migration Act 1958 (Cth) (Migration Act) resulted in the department treating the existence of physical and mental health conditions and other vulnerabilities as of little if any importance in the decision to take a person to a regional processing country.  The decisions by respective Ministers to make and issue those guidelines and to maintain those guidelines were contrary to the rights of the children of the complainants under articles 3(2), 6(2), 16(1), 24(1), 27(1) and 37(c) of the CRC and contrary to the rights of each of the complainants under article 10(1) of the ICCPR.

    6. It was a necessary and foreseeable consequence of taking the complainants to Nauru that they would be arbitrarily detained.  As a result, the decision to take them there was contrary to their rights under article 9(1) of the ICCPR and article 37(b) of the CRC.

1.3. Recommendations

22. As a result of this inquiry, I make the following recommendations to the Commonwealth in relation to the individual complainants:

Recommendation 1

In relation to Ms BK, Mr BL and Miss BM (and their baby girl more recently born in Australia), I recommend that:

(i) The Commonwealth confirm in writing that the family will not be taken back to Nauru.

(ii) The department make a submission to the Minister recommending that he lift the bar under s 46A of the Migration Act to allow the family members to make applications for protection visas, and the Minister accept that recommendation.

(iii) Pending the determination of any applications for protection visas, the family be granted bridging visas with work rights.

(iv) The Commonwealth pay the family an amount to compensate them for the loss and damage they have suffered as a result of the breaches of their human rights identified in this report. Further details of the methods available to the Commonwealth to provide compensation to the complainants are set out in section 8.1(c) below.

(v) The Commonwealth provide the family with an apology in relation to the breaches of their human rights identified in this report.

Recommendation 2

In relation to Ms CO, Mr CP and Master CQ (and their baby girl more recently born in Australia), I recommend that:

(i) The Commonwealth confirm in writing that the family will not be taken back to Nauru.

(ii) The department make a submission to the Minister recommending that he lift the bar under s 46A of the Migration Act to allow the family members to make applications for protection visas, and the Minister accept that recommendation.

(iii) Pending the determination of any applications for protection visas, the family be granted bridging visas with work rights.

(iv) The Commonwealth pay the family an amount to compensate them for the loss and damage they have suffered as a result of the breaches of their human rights identified in this report. Further details of the methods available to the Commonwealth to provide compensation to the complainants are set out in section 8.1(c) below.

(v) The Commonwealth provide the family with an apology in relation to the breaches of their human rights identified in this report.

Recommendation 3

In relation to Mr DE, Ms DF and Master DG (who have been recognised as refugees and, according to the information most recently provided to the Commission, are currently residing in the community on Nauru), I recommend that:

(i) The Commonwealth allow the family members to apply for protection visas and the opportunity to resettle in Australia.

(ii) The Commonwealth pay the family an amount to compensate them for the loss and damage they have suffered as a result of the breaches of their human rights identified in this report. Further details of the methods available to the Commonwealth to provide compensation to the complainants are set out in section 8.1(c) below.

(iii) The Commonwealth provide the family with an apology in relation to the breaches of their human rights identified in this report.

23. I also make the following systemic recommendations, for the purpose of attempting to prevent a repetition of the acts and practices that I have found to be inconsistent with or contrary to the complainants’ human rights:

Recommendation 4

The Commonwealth confirm by a formal decision and public announcement that it will not send unaccompanied minors or families with children who arrive in Australia seeking asylum to the regional processing centre on Nauru.

Recommendation 5

The Commonwealth confirm that it has now decommissioned all of the vinyl marquee accommodation in the regional processing centre on Nauru.

Recommendation 6

The Commonwealth offer to resettle in Australia any unaccompanied minors and families with children that it transferred to Nauru who still remain on Nauru, along with any single adult women who were residing in the vinyl marquee accommodation in the regional processing centre on Nauru.

Recommendation 7

The Commonwealth amend its policies and practices to ensure that people taken to a regional processing country who have a significant medical condition that cannot be adequately addressed in that country are transferred promptly to Australia for medical treatment unless there is a medical reason why another destination is more appropriate. Under that policy, the approval process for medical transfers should be led by persons located in regional processing countries with clinical training in emergency medicine.

Recommendation 8

The department amend its policies and practices to ensure that people who require medical transfers are notified at the earliest opportunity of when and where they will be transferred.

Recommendation 9

The department publish its policies in relation to medical transfers.

Recommendation 10

The department amend its policies and practices in relation to the conduct of best interests assessments for children to ensure that it involves a substantive assessment on an individual basis. This will require that:

(i) the individual circumstances of each child is actively considered, treated as a primary consideration and weighed against other relevant considerations;

(ii) no consideration other than the best interests of a child is expressly or implicitly regarded as a consideration that necessarily outweighs the interests of that child, prior to such an assessment being carried out.

Recommendation 11

The department amend its policies and practices to ensure that when decisions are made about children’s parents which also concern the rights of children, that the best interests of the children are taken into account as a primary consideration.

1. [1] Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42.