Message: Mansour Ligaei and others against Australia. Message N 1937/2010. The Views were adopted by the Human Rights Committee (hereinafter referred to as the Committee) March 26, 2015
In 2010, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Australia.
Subject of the message: deportation to the Islamic Republic of Iran.
Substantive issue: important national security considerations; information about expulsion; discrimination based on national origin; discrimination based on other circumstances; unjustified interference in family life; priority interests of the child.
The Committee's legal position: The Committee refers to its law enforcement practice, according to which the refusal of the State party to allow one of the family members to remain on its territory would constitute interference in the family life of the person concerned (See Vinata v. Australia, paragraph 7.1; Madafferi v. Australia, paragraph 9.7; and Warsame v. Canada, item 8.7.). ...The Committee considers that if a State party's decision implies the mandatory departure from the country of the father of a family with a minor child, and also forces the family to choose whether to accompany the father or stay in the State party, then it should be considered as interference in family affairs, at least in circumstances where As in this situation, in any case there will be significant changes in long-established family life (See Madafferi v. Australia, paragraph 9.8.). In view of these circumstances, the Committee considers that the State party's decision to refuse the author's visa, which led to this situation, constitutes interference within the meaning of article 17 of the Covenant (paragraph 10.3 of the Views).
The Committee recalls that the concept of "arbitrariness" includes elements of impropriety, injustice, lack of predictability and due process (See communication No. 2009/2010, Ilyasov v. Kazakhstan, paragraph 7.4 of the Views adopted on 23 July 2014). The Committee considers that the violation of long-established family life imposes an additional burden on the State party with from the point of view of the procedure leading to such a violation (paragraph 10.4 of the Considerations).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the author's claim that the refusal of the State party to grant him a visa, which led to his forced departure from the country, was an arbitrary interference in his family life within the meaning of articles 17 and 23 of the Covenant and violated his daughter's rights under article 24 of the Covenant, since at the time When she left, she was a minor and was not given the protection to which she was entitled under this provision. The Committee notes the State party's argument that the decision on whether family members will travel with the author to the Islamic Republic of Iran or stay in Australia is a purely family matter and the actions of the State did not provoke any separation of family members. The Committee ... Notes the State party's contention that due consideration was given to the interests of the minor child when making the decision that led to the author's departure from the country, but imperative national security considerations prevailed in the case (paragraph 10.2 of the Considerations).
In the present case, the author has lived with his family in Australia for 16 years, and the local authorities have never accused him of anything or warned him about his personal behavior. His two eldest sons have been Australian citizens since 2003, his youngest daughter was born and went to school in Australia, having established her social ties here. After reviewing the author's application for a permanent visa, the State party decided not to issue it to the author for what it considered "imperative security reasons", while at the same time giving the rest of the family the opportunity to continue to stay on its territory. In the end, the author's wife did not want to live apart from her husband, they decided together that it was better for their minor daughter to stay with them, and since the author was denied the right to stay in the country, on June 27, 2010. they left Australia (paragraph 10.3 of the Considerations).
In the present case, at the time of departure, the author had legally lived in the territory of the State party for more than 16 years and, apparently, without any legal restrictions, and the State party does not deny this fact. The author was never officially informed on what the visa refusal was based on, which forced him to leave the country; he was only explained in general terms that he posed a threat to national security, as evidenced by certificates of unreliability, which he was not even acquainted with in the form of a resume. At the same time, his legal representatives were given the opportunity to familiarize themselves with the information available against him, but by a judge's order they were forbidden to inform the author of any information through which he could give them instructions in response and challenge the conclusion according to which he poses a threat to national security (paragraph 10.4 of the Considerations).
Given that the author has lived legally in Australia for 16 years and had an established family life all this time, as well as due to the absence of any explanation from the State party of the reasons why he was deprived of the right to remain in the country, limiting himself to a general statement that this is being done for For "imperative reasons of national security", the Committee concludes that there was no due process in the actions of the State party. Accordingly, the State party has not provided the author with a reasonable and objective justification for its interference in his established family life (paragraph 10.4 of the Considerations).
Conclusions of the Committee: The Committee considers that the facts presented to it reveal a violation of the provisions of article 17 in conjunction with the provisions of article 23 of the Covenant in relation to the author and his family (paragraph 11 of the Views).
In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is obliged to provide the author with an effective and appropriate remedy, including a real opportunity to challenge the refusal to grant him a permanent visa and compensation. The State party is also obliged to prevent similar violations in the future (paragraph 12 of the Views).