Class action asks UN to deliver finding on separation of asylum seeker families in Australia

CANBERRA — More than 60 parents and children seeking asylum have filed a complaint against the Australian government with the United Nations Human Rights Committee, asking for the body to rule on the legality of families separated as part of Australia’s policy of offshore detention.

The submission is expected to be followed by humanitarian groups globally to determine how it could impact other immigration policies.

Family separation has been under the spotlight in the United States, where children have been taken from their parents as part of harsh new immigration policies. While children are not separated from both parents in Australia, it is not uncommon for them to be separated from their fathers, who remain in Manus Island or Nauru awaiting the procedure of refugee claims.

The case is being brought to the U.N. on behalf of 14 families – 63 people in total — women, men, and children. It is one of the largest ever U.N. actions brought against the Australian government and is likely to take the shine off the government’s first year as a member of the U.N. Human Rights Council.

Families have been separated because they arrived in Australia on different dates – some just prior to the commencement of offshore detention, a hardline policy brought into place in 2013 to deter asylum seekers arriving by boat. For others, medical emergencies have seen children on Nauru, along with their mothers, evacuated to Australia while other family members stay behind.

The Human Rights Law Centre is spearheading the class action along with barristers Kylie Evans, John Maloney, and Marion Isobel. The barristers argue that the separation was designed to force those women and children in Australia to return to offshore detention, and to a life in limbo.

"The Department has repeatedly stated that individuals who have temporarily transferred to Australia, including for medical treatment, are expected to return to Nauru or PNG [Papua New Guinea] when the reason they transferred is complete,” a spokesperson for the Department of Home Affairs said in a media statement. "Medical transfer is not a pathway to settlement in Australia."

Among those the action is to support, are five babies born in Australia with fathers indefinitely detained on Nauru. Daniel Webb, director of legal advocacy with the Human Rights Law Centre, said the medical evidence of this separation is “harrowing.”

“Some of these kids are permanently grief-stricken — in their minds every single day it’s like someone they love has died,” he said. “Imagine being a child and growing up permanently grief-stricken, hearing your mum crying in bed every night because she doesn’t know if you will ever get to meet your dad. It’s just brutal.”

The policy has been in place for five years.

Evidence as part of the petition that has been sent to the U.N. Human Rights Committee includes the impact on families and argues that the Australian government is violating the International Covenant on Civil and Political Rights in its actions.

The case will ask for the immediate reunion of each family in Australia and will be assessed by 18 independent international law experts from around the world, with Australia required to accept the findings of the committee and act in accordance with the findings — a requirement under Australia’s ratification of the optional protocol to the convention.

“Every one of these families has a heartbreaking separation moment — a moment when they realized our government was permanently tearing them apart,” Webb said. “One of the dads told me he felt like his entire body froze. He said he couldn’t move or even breathe and just collapsed to the floor and had to be carried away.”

The U.N. Human Rights Committee will next decide whether the cause should be registered and seek a response from Australia if it proceeds. The cause then needs to be assessed for admissibility and merit before being considered in a closed session.

For the families that have been waiting to be reunited, there is still a long way to go. But one worth the effort.

“Right now there are 14 families the Australian government has deliberately and routinely kept apart between Australia and offshore detention on Nauru or Manus,” Freya Dinshaw, senior lawyer with the Human Rights Law Centre, told Devex.

“Sixty-three mothers, fathers and children permanently separated. These families just want what every family in the world wants — to be together with the people they love the most.”

Update, October 16, 2018: This article was updated to clarify the complaint against the Australian government was made to the United Nations Human Rights Committee.