Message: M. J. K. v. Australia. Message No. 1875/2009. The Views were adopted by the Human Rights Committee (hereinafter referred to as the Committee) March 26, 2015
In 2009, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Australia.
Subject of the message: deportation to the United States of America.
Substantive issue: arbitrary detention, expulsion of foreigners legally present in the Territory; equality of competitive opportunities and fair trial; arbitrary interference in family life; the best interests of the child.
The Committee's legal position: The Committee recalls that the concept of arbitrariness is not equivalent to the concept of wrongfulness, but should be interpreted broadly and include elements of impropriety, injustice, lack of predictability and due process guarantees. Detention during judicial proceedings in the interests of immigration control is not arbitrary in itself, but it must be justified as reasonable, necessary and proportionate in the light of the circumstances, and the decision to apply it should be reviewed over time. The subsequent detention of immigrants during the consideration of their complaints would be arbitrary in the absence of characteristics peculiar to a particular person, in particular a tendency to abscond from justice, the risk of committing a crime against other persons or attacks on national security. When making a decision, the relevant factors for each specific case should be taken into account and not based on any mandatory rule of a broader nature; The decision should be made by considering measures to achieve the desired goals that are less coercive, for example, the practice of reporting to the police, guarantees or other mechanisms that prevent a person from hiding, and should be periodically re-evaluated and subject to judicial review (paragraph 11.5 of the Considerations) (See communications No. 2136/2012, M.M.M. al. v. Australia, para. 10.3; and No. 1014/2001, Baban v. Australia, Views of 6 August 2003, paragraph 7.2.).
The Committee recalls its general comment No. 16, according to which the concept of family should be interpreted broadly (See communication No. 1959/2010, Warsame v. Canada, Views of July 21, 2011, paragraph 8.7.). It covers not only the family home of married or cohabiting persons, but also in general the relationship between parents and children (See communication No. 417/1990, Balaguer Santacana v. Spain (see footnote 7), paragraph 10.2.). The Committee cannot rule out that the author and his son had a family relationship other than a biological link between them, since, according to the orders of the Federal Magistrates Court, the author was allowed to maintain contacts with him, but they were not implemented for a number of reasons, including due to the strained relationship of the author with his former partner and his detention in immigration insulator (clause 11.8 of the Considerations).
The Committee recalls that even the intervention provided for by law must comply with the provisions, objectives and objectives of the Covenant and must be appropriate in specific circumstances (paragraph 11.9 of the Views) (See communication No. 2243/2010, Husseini v. Denmark, Views of 24 October 2014, paragraphs 9.3 - 9.4.).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the author's claim that his detention on immigration grounds was arbitrary, unreasonably prolonged and that he could not challenge its legality. The Committee notes the State party's argument that the author was detained in accordance with the procedures provided for in the Migration Act; that the detention of non-citizens illegally in the country after the expiration of a criminal sentence of imprisonment may be necessary to ensure that a person who does not have a valid visa to stay in Australia is available for expulsion, unless reasons are found for his continued legal residence in Australia, and that the author continued to remain in custody when During the three-year period, he filed appeals against the initial decision of the Tribunal that his visa had been lawfully cancelled (paragraph 11.2 of the Considerations).
The Committee takes into account that the author's detention and subsequent expulsion were carried out in accordance with Australian law, which provides for the possibility of visa cancellation under section 501 of the Migration Act due to criminal records; that he was taken into custody under the Migration Act as a "non-citizen illegally in the country" (See section 189 of the Law on migration.), and that he was expelled under Art. 198 (6) upon completion of his final attempt to remain in Australia by applying for a protection visa. Regardless of these considerations, the Committee must determine whether such detention, even if carried out in accordance with Australian law, was arbitrary, as the author claims (paragraph 11.3 of the Views).
The Committee notes the undeniable fact that in June 2004 the author was released by a decision of the Queensland Correctional Services Board, according to which he could have been released to live in Australian society. He... Notes that the author was released on parole and was allegedly reported to the police for a year and had no comments before the Minister's representative decided to cancel his visa due to a criminal record. The author was placed in immigration detention a year after his parole on October 20, 2005. He remained in custody until his expulsion on 8 May 2009, which took place three and a half years later (paragraph 11.4 of the Considerations).
According to the information received by the Committee, the author became a "non-citizen illegally in the country" as a result of the cancellation of his visa and, according to the Migration Act of 1958, was automatically placed in immigration detention until his expulsion, which eventually occurred three and a half years later. During this time, the authorities of the State party did not make an individual assessment of the need for further detention of the author in an immigration detention facility. The Committee considers that the State party has not demonstrated on an individual basis that the author's continuous and prolonged detention was justified in terms of its duration (See communication No. 2094/2011, F. K. A. D. et al. v. Australia, Views of 26 July 2013, para. 94.). The State party ... It has not proved that other, less stringent measures could not have been used to achieve this goal, i.e. to meet the State party's need to ensure the author's appearance for expulsion (see paragraph 6.3 above). In addition, the author was deprived of the opportunity to challenge the merits of the decision on his indefinite detention. The Committee refers to its jurisprudence, according to which judicial review of the legality of detention is not limited to checking the compliance of detention with domestic law, and should also include the possibility of releasing a person in case of incompatibility of his detention with the requirements of the Covenant (See communications N 2094/2011, F. K. A. D. et al. v. Australia (see footnote 23), paragraph 9.6; and No. 1014/2001, Baban v. Australia (see footnote 22), paragraph 7.2.). For all these reasons, the Committee considers that, in the circumstances, the author's detention violated his rights under article 9, paragraph 1, of the Covenant (paragraph 11.6 of the Views).
The Committee takes note of the author's claim that his expulsion constitutes arbitrary interference with his family life within the meaning of articles 17 and 23 of the Covenant. The Committee takes into account the State party's argument that the author and his son do not form a family under articles 17 and 23 of the Covenant, since contact between them was minimal (paragraph 11.7 of the Views).
The Committee considers that the State party's decision to deport the author, which could have had a lasting impact on his relationship with his son, combined with a complete ban on entry to Australia, should be considered interference with family life (paragraph 11.8 of the Views).
In the light of the information provided to it, the Committee considers that the State party's decision to revoke the author's visa was based on objective and reasonable grounds, in particular taking into account the author's criminal record, although the author's family circumstances were taken into account when making decisions by the Minister's representative and the Administrative Appeals Tribunal. In these circumstances, the Committee considers that the author's personal marital status has been thoroughly analyzed by the competent authorities and that the interference in the author's family life that occurred is not arbitrary within the meaning of art. 17 of the Pact. The Committee submits that the facts before it do not reveal a violation of articles 17 and 23 of the Covenant (paragraph 11.9 of the Views).
Conclusions of the Committee: The Committee considers that the facts presented to it reveal a violation of article 9 of the Covenant (paragraph 12 of the Views).
In accordance with the sub-item. (a) Article 2, paragraph 3, of the Covenant, the State party is under an obligation to provide the author with effective and appropriate remedies, including compensation. The State party ... it is obliged to prevent similar violations in the future. In this regard, the State party should review its migration legislation to ensure its compliance with the requirements of article 9 of the Covenant (paragraph 13 of the Views).