Australian Human Rights Commission Australia and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Shadow report to the CERD Committee – 8 July 2010 the prolonged or indefinite detention of asylum seekers. This is a particular concern in the case of unaccompanied minors and families with children. 164. The Commission is also concerned that the suspension decision may be inconsistent with Australia’s obligations under ICERD. While the Convention permits distinctions between citizens and non-citizens, 149 the Committee has stated that State Parties should ‘ensure that immigration policies do not have the effect of discriminating against persons on the basis of race, colour, descent, or national or ethnic origin’. 150 165. The Commission is concerned that the suspension may constitute indirect racial discrimination under ICERD. The Committee has confirmed that the definition of racial discrimination in article 1 extends ‘beyond measures which are explicitly discriminatory, to encompass measures which are not discriminatory at face value but are discriminatory in fact and effect’. 151 In considering whether an action will have an effect contrary to the Convention, the Committee will look to see whether that action has disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin; and if so, whether the impact is justified. 152 166. The Australian Government has decided to suspend the processing of new refugee claims from asylum seekers who are nationals of Sri Lanka or Afghanistan. The Commission recognises that this distinction is on the basis of nationality. However, the impact of this policy clearly has a disproportionate effect on people of Sri Lankan and Afghan national origin. 167. The suspension decision potentially limits the right of Sri Lankan and Afghan nationals to equality before the law including equal treatment before tribunals and other organs administering justice (protected under article 5 of ICERD), and the right to freedom from arbitrary detention (protected under article 9 of the International Covenant on Civil and Political Rights). 168. The Commission is concerned that these potential restrictions on fundamental human rights have not been adequately justified. The rationale given by the Australian Government for the suspension decision is that the circumstances in Sri Lanka and Afghanistan are improving, and it is likely that those who may now be found to be refugees would not be so in the future. However, it seems that conditions in countries that have been unstable are by definition always changing. The government has provided no evidence to suggest that conditions in Sri Lanka and Afghanistan are certain to markedly improve within a very short timeframe such that its suspension is justified. Recommendation 48: That the Australian Government promptly lift the suspension on new refugee claims by asylum seekers from Sri Lanka and Afghanistan. 44