The case is John Isley v. Australia. The opinion of the UN Human Rights Committee dated July 19, 2023. Communication No. 3208/2018.
In 2018, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Australia.
The applicant was a national of the United Kingdom of Great Britain and Northern Ireland. He claimed that the State party had violated his rights under articles 14, 17, paragraph 1, and 23, paragraph 1, of the Covenant. The Committee concluded that the author's expulsion to the United Kingdom violated his rights.
The Committee's legal position: There may be cases where the refusal of a State party to allow one of the family members to stay on its territory would constitute interference in the family life of that person. However, the mere fact that certain family members have the right to remain in the territory of a State party does not at all mean that the requirement for other family members to leave its territory constitutes such interference. The Committee considers that the separation of a person from his family by expulsion may be considered arbitrary interference in family affairs and a violation of article 17, paragraph 1, of the Covenant if, judging by the circumstances of the case, the separation of the author from his family and the consequences of such a decision would be disproportionate to the purposes of expulsion (paragraph 8.2 of the Considerations).
The Committee notes that the concept of arbitrariness includes elements of unacceptability, injustice, unpredictability and non-observance of procedural guarantees, as well as consideration of elements of expediency, necessity and proportionality. The Committee also recalls that in cases where one part of the family must leave the territory of a State party, while the other part will have the right to remain in its territory, the relevant criteria for assessing whether a specific interference with family life can be objectively justified should be considered, on the one hand, in the light of the importance of the reasons put forward by the State party for the expulsion of the person concerned and, on the other hand, the seriousness of the situation in which the family and its members will find themselves as a result of this expulsion (paragraph 8.4 of the Views).
The Committee's assessment of the factual circumstances of the case: it has been established that the decision of the State party to expel a person who has lived all his life in Australia, as a result of which he must leave his family and common-law wife, with whom he has been in a relationship for 17 years, to a country with which he has nothing to do except his nationality, should to be considered as an "interference" in family life. The Committee noted that in the present case, the State party had not denied the existence of interference. The Committee then had to consider whether such interference could be considered arbitrary or unlawful. The Committee noted that such interference is lawful, as it is provided for by the State party's Migration Law, according to which the Minister of Immigration and Border Protection can revoke a visa if a person has been sentenced to imprisonment for 12 months or more, convicted of one or more sexual offences against a child, or is currently time is serving a prison sentence. In the present case, the author has fully served his prison sentence after being convicted of serious crimes and sentenced to eight years and six months in prison (paragraph 8.3 of the Considerations).
The Committee recognized the significance of the author's criminal record. However, the Committee noted the author's claim that, despite the time spent in prison, he maintained a strong relationship with his common-law wife and family; he was described as an exemplary prisoner, and he had... [positive] feedback from his prison supervisor; he participated in rehabilitation programs; that a senior forensic psychologist assessed him as a low-risk person to society; he did not [have] any family ties or contacts with anyone in the United Kingdom; and his expulsion will lead to a complete severance of family ties, since his parents are buried in Australia, and his common-law wife cannot come to the United Kingdom for financial and emotional reasons after her sister was recently diagnosed with breast cancer. The Committee took note of the author's argument, pointing to his limited criminal record and the isolated nature of his crimes, as well as the fact that after his release his life was strictly regulated and under control. He argued that his expulsion would not enhance the safety of Australian society, since protective measures had already been taken (paragraph 8.5 of the Considerations).
The Committee noted that in its decision, the Minister of Immigration and Border Protection concluded that the serious nature of the crimes committed by the author and the possibility of reoffending posed an unacceptable risk to Australian society and outweighed the consequences of the author's expulsion for himself and his family. In the light of the information provided to it, the Committee considered that the author's expulsion was final and had serious consequences for the author and his family. He concluded that the expulsion was a measure disproportionate to the legitimate purpose of preventing the commission of new crimes, especially given the significant time interval between the commission of crimes considered by the Minister and the expulsion of the author; the absence of recurrence of crimes between bail in 2008 and the court in 2011; recognition by the Minister of his "appropriate conduct after the commission of a crime"; the author's efforts to participate in rehabilitation programs; and his inclusion in the sex offender registry and subsequent monitoring of his behavior. In this regard, the Committee also noted that the State party had not examined whether it could have taken other measures that would have been less restrictive and less detrimental to the author's family life, and therefore it had not demonstrated that the author's expulsion was a reasonable measure in the given circumstances (paragraph 8.6 of the Views).
The Committee's conclusions: The State party violated his rights under articles 17, paragraph 1, and 23, paragraph 1, of the Covenant (paragraph 9 of the Opinion).