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The UN has ordered that Australia compensate the Afghan refugee who, having arrived as an unaccompanied child, endured more than seven years of detention. By Dr Saba Vasefi.

Exclusive: The lost childhood of Khan Ali Safdary

Afghan refugee Khan Ali Safdary.

Credit: Louie Douvis

National and international human rights bodies have found that Australia violated the rights of Khan Ali Safdary, an Afghan refugee who arrived in 2011 as an unaccompanied child.

Khan Ali – a member of the systematically persecuted Hazara minority – was unable to pursue legal redress in an Australian court due to this country’s lack of federal human rights legislation.

Now 31, he has endured multiple forms of confinement, including more than seven years in closed detention centres across several states, as well as time in mental health institutions. In 2017, he suffered life-altering harm during his detention on Christmas Island.

“I’ve been to places where officials say human rights are a Western idea and deny them. But none treated me as cruelly as Australia,” Khan Ali tells The Saturday Paper.

“I wrote dozens of complaints to the government, but each was denied,” he says. “As a survivor of war, genocide and one of the most punitive and inhumane immigration systems in the democratic world, I want to understand how those meant to uphold the law can become its violators?”

On April 28, six years after Khan Ali submitted his case to the United Nations Human Rights Committee – under the Optional Protocol to the International Covenant on Civil and Political Rights – it has censured Australia for his arbitrary detention and the insecure conditions of his confinement.

The committee found that the prolonged nature of Khan Ali’s detention was “unreasonable, unnecessary, and disproportionate” to any legitimate policy objective. It determined that Australia violated his rights by denying him meaningful judicial review of his detention and by subjecting him to conditions that inflicted grave psychological harm.

The UN has ordered that Australia provide Khan Ali with appropriate medical rehabilitation and compensation, respond within 180 days detailing how it will implement the ruling, and widely disseminate the findings.

“I want justice,” Khan Ali says in Dari. “My case should be assessed under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, not the International Covenant on Civil and Political Rights.”

Alison Battisson, principal lawyer at Human Rights for All, who represented Khan Ali’s case at the UN, says Australia’s treatment of refugees in its detention regime – both onshore and offshore – and its refusal to provide permanent safety to certain groups of refugees, go against the core principles of the UN foundational documents and the Refugee Convention.

“It makes a mockery of Australia’s membership of the UN and signatory to the main human rights conventions,” Battisson says.

Khan Ali was a child when his brother was killed in Afghanistan’s internal conflict, and he saw his brother’s bloodied corpse, bearing a gunshot wound to the head.

At 14, Khan Ali walked, took public transport and hitchhiked from Pakistan through Iran and Turkey, eventually reaching Greece. Facing deportation, he hid in a truck to Italy, then took a train to Austria, where authorities detained him for deportation to Greece.

In Austria, the UN Refugee Agency helped Khan Ali to obtain a temporary visa as a minor.

After learning of his father’s murder in Pakistan, he flew to Australia in October 2011 to reunite with his siblings. Upon arrival, at age 17, the government did not recognise his status as a child.

The immigration department used wrist X-rays that are considered “discredited age verification techniques” to classify him as an adult, which led to more than seven months in adult detention at New South Wales’s Villawood Immigration Detention Centre.

Khan Ali was released on a bridging visa in 2011 but redetained in 2012 after his protection visa was rejected. Denied another bridging visa in 2013, he spent six years in other detention centres, moving from Western Australia’s Yongah Hill to the highest-risk jail on Christmas Island in 2016.

There, Khan Ali endured a serious assault. Before being taken to hospital, he was placed in solitary confinement.

The Western Australian District Court could not directly determine whether the harm constituted a breach of his human rights. However, it described his “vicious beating”, resulting in injuries that included a fractured eye socket, tinnitus, permanent hearing loss, chronic head pain and double vision.

The attack occurred after authorities housed violent offenders alongside vulnerable asylum seekers. The court lacked jurisdiction to assess whether this amounted to inhuman or degrading treatment while in state custody.

In response to his complaint against the Commonwealth of Australia, in particular the Department of Home Affairs and detention centre operators Serco Australia, the Australian Human Rights Commission issued a report that was tabled in parliament and submitted to the attorney-general.

The report attributed the assault to the Commonwealth’s unjustified classification of Khan Ali as a “high-risk” detainee.

Khan Ali was treated at Christmas Island before being flown to Royal Perth Hospital, then transferred to Perth Immigration Detention Centre. According to the Human Rights Commission, Serco guards used excessive force to move him back to Yongah Hill, including handcuffs, a body belt, and kicking him post-surgery while another officer restrained his head.

The commission contradicted the accounts of the centre’s operations manager and five other officers that Khan Ali posed a threat.

Khan Ali says he was also repeatedly denied access to his full medical records. “I still haven’t seen the X-ray of my fractured eye socket,” he says. “Instead of protection, I was punished. There was no explanation. This wasn’t treatment – it was trauma.”

In a letter responding to the Human Rights Commission, a Home Affairs official said the department does not accept the finding that Khan Ali’s detention from February 2017 was arbitrary, maintaining it was justified based on his circumstances.

The department delayed referring Khan Ali’s case for release consideration in 2014, 2017 and 2018, leading to more than five years of continuous detention before ministerial consideration. He was granted a Safe Haven Enterprise Visa in 2021, permitting him to get a job and to study. Two years later, he received a visa to stay in Australia permanently.

Also, he says in 2014 his personal data was compromised in a government data breach. “There has been no compensation,” he says.

Despite findings by the UN and the Australian Human Rights Commission that Australia breached his human rights, and an Australian court awarding compensation for the assault he suffered, Khan Ali has been unable to bring a direct human rights claim before an Australian court.

While Australia has ratified international human rights treaties, those commitments remain unprotected at the federal level. Kate Ogg, professor of human rights law at the Australian National University, describes this as a significant democratic failure.

While Queensland, Victoria and the ACT have human rights laws, these frameworks do not extend to many situations refugees face – particularly immigration detention.

This legislative gap prevents Australian courts from playing a meaningful role in protecting rights, Ogg notes. “Courts are an essential aspect of the rule of law. By hearing evidence and determining legal disputes, they provide transparency and accountability – especially with respect to government action. But because most human rights issues cannot be litigated before Australian courts, much of government decision-making escapes judicial scrutiny.”

This shortcoming also limits Australia’s ability to contribute to the international development of human rights law. “When courts determine human rights disputes, they have the opportunity to consider and refer to decisions from other parts of the world,” Ogg explains. “Australian courts are largely excluded from this global judicial conversation.”

She calls this a missed opportunity. “In comparable areas of law – such as interpretations of the refugee definition – Australian courts have handed down leading decisions that have been influential in other countries.”

Much of Australia’s immigration detention regime operates in secrecy, with oversight bodies such as the Australian Human Rights Commission and the UN limited in their ability to monitor conditions or compel change. As a result, systemic issues often come to light only through legal action brought by refugees.

Ogg notes that while rulings by the UN Human Rights Committee or other treaty bodies provide important international scrutiny of Australia’s refugee policies, the Australian government does not consider these findings to be legally binding – and has, in many cases, simply disregarded them.

A national human rights act would establish enforceable protections to prevent harm, promote government transparency and accountability and mitigate impunity for rights violations.

In May 2024, the Parliamentary Joint Committee on Human Rights recommended that Australia adopt human rights legislation. The former attorney-general, Mark Dreyfus, had championed an inquiry into the proposal.

Responsibility now falls to his successor, Michelle Rowland. A spokesperson for the Attorney-General’s Department says it is “carefully considering” the joint committee’s recommendations.

“Thorough consideration is required to ensure a holistic approach is taken to ensuring the rights and freedoms of all Australians are respected and protected,” the spokesperson says. “Australia has a strong history of engagement with human rights issues, and the Government is committed to ensuring Australia’s human rights framework appropriately protects fundamental human rights.”

As the re-elected Labor government weighs reform, the question remains: will Australia align its laws with its international human rights obligations?

This article was first published in the print edition of The Saturday Paper on June 7, 2025 as "Khan Ali Safdary’s trauma".

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